2.5. Third Party Web Services

The Cloud Service may include integrations with web services made available by third parties (other than SCIOERP SE or its Affiliates) that are accessed through the Cloud Service and subject to terms and conditions with those third parties. These third party web services are not part of the Cloud Service and the Agreement does not apply to them. SCIOERP is not responsible for the content of these third party web services.

2.6. Mobile Access to Cloud Service

Authorized Users may access certain Cloud Services through mobile applications obtained from third-party websites such as Android or Apple app stores. The use of mobile applications may be governed by the terms and conditions presented upon download/access to the mobile application and not by the terms of the Agreement.

2.7. On-Premise Components

The Cloud Service may include on-premise components that can be downloaded and installed (including updates) by Customer. The System Availability SLA does not apply to these components. Customer may only use the on-premise components during the Subscription Term.

3. SCIOERP RESPONSIBILITIES

3.1. Provisioning

SCIOERP provides access to the Cloud Service as described in the Agreement. SCIOERP makes the Cloud Service available and is responsible for its operation.

3.2. Support

SCIOERP provides support for the Cloud Service as referenced in the Order Schedule.

3.3. Security

SCIOERP will implement and maintain appropriate technical and organizational measures to protect the personal data processed by SCIOERP as part of the Cloud Service as described in the Data Processing Agreement incorporated into the Order Schedule in compliance with applicable data protection law.

3.4. Modifications

SCIOERP will implement and maintain appropriate technical and organizational measures to protect the personal data processed by SCIOERP as part of the Cloud Service as described in the Data Processing Agreement incorporated into the Order Schedule in compliance with applicable data protection law.

3.4.1. Scope

SCIOERP may modify the Cloud Service (including support services, Maintenance Windows and Major Upgrade Windows), provided that SCIOERP shall not materially degrade the core functionality of the Cloud Service during the Subscription Term.

3.4.2. Modification Notices

SCIOERP shall provide Customer with reasonable advance notice of modifications to the functionality of the Cloud Service in accordance with Section 13.5, except for any change to a Maintenance Window or Major Upgrade Window which shall be in accordance with the Service Level Agreement.

3.4.3. Customer Termination

If the modification materially degrades the Cloud Service and SCIOERP does not provide equivalent functionality, Customer may terminate its subscription to the affected Cloud Service by providing written notice to SCIOERP within 1 month of SCIOERP’s notice. If SCIOERP does not receive timely notice, Customer is deemed to have accepted the modification.

4. CUSTOMER AND PERSONAL DATA

4.1. Customer Ownership

Customer retains all rights in and related to the Customer Data. SCIOERP may use Customer-provided trademarks solely to provide and support the Cloud Service.

4.2. Customer Data

Customer is responsible for the Customer Data and entering it into the Cloud Service. Customer grants to SCIOERP (including SCIOERP LTD, its Affiliates and subcontractors) a non-exclusive right to process and use Customer Data to provide and support the Cloud Service and as set out in the Agreement.

4.3. Personal Data

Customer will collect and maintain all personal data contained in the Customer Data in compliance with applicable data privacy and protection laws.

4.4. Security

Customer will maintain reasonable security standards for its Authorized Users’ use of the Cloud Service. Customer will not conduct or authorize penetration tests of the Cloud Service without advance approval from SCIOERP.

4.5. Access to Customer Data

4.5.1. During the Subscription Term, Customer can access its Customer Data at any time. Customer may export and retrieve its Customer Data in a standard format. Export and retrieval may be subject to technical limitations, in which case SCIOERP and Customer will find a reasonable method to allow Customer access to Customer Data.

4.5.2. Before the Subscription Term expires, Customer may use SCIOERP’s self-service export tools (as available) to perform a final export of Customer Data from the Cloud Service.

4.5.3. At the end of the Agreement, SCIOERP will delete the Customer Data remaining on servers hosting the Cloud Service unless applicable law requires retention. Retained data is subject to the confidentiality provisions of the Agreement.

4.5.4. In the event of third party legal proceedings relating to the Customer Data, SCIOERP will cooperate with Customer and comply with applicable law (both at Customer’s expense) with respect to handling of the Customer Data.

5. FEES AND TAXES

5.1. Fees and Payment

Customer shall pay fees as stated in the Order Schedule. If Customer does not pay fees in accordance with the terms of the Agreement, then, in addition to any other available remedies, SCIOERP may suspend Customer's use of the applicable Cloud Service until payment is made. SCIOERP shall provide Customer with prior written notice before any such suspension. Any fees not paid when due shall accrue interest at the maximum legal rate. Purchase orders are for administrative convenience only. SCIOERP may issue an invoice and collect payment without a corresponding purchase order. Customer may not withhold, reduce or set-off fees owed. Customer may not reduce Usage Metrics during the Subscription Term. All Order Schedules are non-cancellable. All fees are non-refundable except per Sections 6.3 or 7.4.2.

5.2. Taxes

All fees and other charges are subject to applicable Taxes, which will be charged in addition to fees under the Agreement.

6. TERM AND TERMINATION

6.1. Term

The Subscription Term is as stated in the Order Schedule.

6.2. Termination

A party may terminate the Agreement:

1. for cause upon 30 days' prior written notice of the other party's material breach of any provision of the Agreement (including Customer's failure to pay any money due hereunder within 30 days of the payment due date) unless the breaching party has cured the breach during such 30 day period;
2. as permitted under Sections 3.4.3, 7.3.b), 7.4.3, 8.1.4, or 13.4 (with termination effective thirty days after receipt of notice in each of these cases); or
3. immediately if the other party files for bankruptcy, becomes insolvent, or makes an assignment for the benefit of creditors, or otherwise materially breaches Sections 11 or 13.6.

6.3. Refund and Payments

For termination by Customer (including but not limited to Sections 3.4.3, 6.2(a), 7.3(b), or 7.4.3) or termination under Sections 8.1.4 or 13.4, the termination will take effect at the end of the current subscription term following the receipt of the termination notice. The Customer will:

1. remain liable for all fees associated with the current subscription term, and no refunds or credits will be issued for any prepaid fees;
2. not obligated to renew the subscription after the term ends.
3. be released from the obligation to pay fees due for periods after the effective date of termination.

6.4. Effect of Expiration or Termination

Upon the effective date of expiration or termination of the Agreement:

1. Customer’s right to use the Cloud Service and all SCIOERP Confidential Information will end;
2. Confidential Information of the disclosing party will be retained, returned, or destroyed as required by the Agreement or applicable law; and
3. termination or expiration of the Agreement does not affect other agreements between the parties.

6.5. Survival

Sections 1, 5, 6.3, 6.4, 6.5, 8, 9, 10, 11, 12 and 13 will survive the expiration or termination of the Agreement.

7. WARRANTIES

7.1. Compliance with Law

Each party warrants its current and continuing compliance with all laws and regulations applicable to it in connection with:

1. in the case of SCIOERP, the operation of SCIOERP’s business as it relates to the Cloud Service; and
2. in the case of Customer, the Customer Data and Customer’s use of the Cloud Service.

7.2. Good Industry Practices

SCIOERP warrants that it will provide the Cloud Service:

1. in substantial conformance with the Documentation; and
2. with the degree of skill and care reasonably expected from a skilled and experienced global supplier of services substantially similar to the nature and complexity of the Cloud Service.

7.3. Remedy

Customer’s sole and exclusive remedies and SCIOERP’s entire liability for breach of the warranty under Section 7.2 will be:

1. correction of the deficient Cloud Service; and
2. if SCIOERP fails to correct the deficient Cloud Service, Customer may terminate its subscription for the affected Cloud Service. Any termination must occur within 3 months of SCIOERP’s failure to correct the deficient Cloud Service.

7.4. System Availability

7.4.1. SCIOERP warrants to maintain an average monthly system availability for the production system of the Cloud Service as defined in the applicable Service Level Agreement or Supplement (“SLA”).

7.4.2. Customer’s sole and exclusive remedy for SCIOERP’s breach of the SLA is the issuance of a credit in the amount described in the SLA. Customer will follow SCIOERP’s posted credit claim procedure. When the validity of the service credit is confirmed by SCIOERP in writing (email permitted), Customer may apply the credit to a future invoice for the Cloud Service or request a refund for the amount of the credit if no future invoice is due.

7.4.3. In the event SCIOERP fails to meet the SLA (i) for 4 consecutive months, or (ii) for 5 or more months during any 12 month period, or (iii) at a system availability level of at least 95% for 1 calendar month, Customer may terminate its subscriptions for the affected Cloud Service by providing SCIOERP with written notice within 30 days after the failure.

7.5. Warranty Exclusions

The warranties in Sections 7.2 and 7.4 will not apply if:

1. the Cloud Service is not used in accordance with the Agreement or Documentation;
2. any non-conformity is caused by Customer, or by any product or service not provided by SCIOERP; or
3. the Cloud Service was provided for no fee.

7.6. Disclaimer

Except as expressly provided in the Agreement, neither SCIOERP nor its subcontractors make any representation or warranties, express or implied, statutory or otherwise, regarding any matter, including the merchantability, suitability, originality, or fitness for a particular use or purpose, non-infringement, or results derived from the use of or integration with any products or services provided under the Agreement. SCIOERP shall not be liable for any losses, damages, or errors arising from user actions, misuse, or inaccuracies, including, but not limited to, any unintended consequences, improper handling of services, or user-generated errors. Furthermore, Customer agrees that it is not relying on delivery of future functionality, public comments, or advertising of SCIOERP or product roadmaps in obtaining subscriptions for any Cloud Service. SCIOERP does not guarantee secure, uninterrupted, or error-free operation of any products or services.

8. THIRD PARTY CLAIMS

8.1. Claims Brought Against Customer

8.1.1. SCIOERP will defend Customer against claims brought against Customer and its Affiliates by any third party alleging that Customer’s and its Affiliates’ use of the Cloud Service infringes or misappropriates a patent claim, copyright, or trade secret right. SCIOERP will indemnify Customer against all damages finally awarded against Customer (or the amount of any settlement SCIOERP enters into) with respect to these claims.

8.1.2. SCIOERP’s obligations under Section 8.1 will not apply if the claim results from:

1. use of the Cloud Service in conjunction with any product or service not provided by SCIOERP;
2. use of the Cloud Service provided for no fee;
3. Customer’s failure to timely notify SCIOERP in writing of any such claim if SCIOERP is prejudiced by Customer’s failure to provide or delay in providing such notice; or
4. any use of the Cloud Service not permitted under the Agreement.

8.1.3. If a third party makes a claim or in SCIOERP's reasonable opinion is likely to make such a claim, SCIOERP may at its sole option and expense:

1. procure for Customer the right to continue using the Cloud Service under the terms of the Agreement; or
2. replace or modify the Cloud Service to be non-infringing without a material decrease in functionality.

8.1.4. If these options are not reasonably available, SCIOERP or Customer may terminate Customer’s subscription to the affected Cloud Service upon written notice to the other.

8.1.5. SCIOERP expressly reserves the right to cease such defense of any claim(s) if the applicable Cloud Service is no longer alleged to infringe or misappropriate the third party’s rights.

8.2. Claims Brought Against SCIOERP

Customer will defend SCIOERP against claims brought against SCIOERP, SCIOERP LTD, its Affiliates and subcontractors by any third party related to Customer Data. Customer will indemnify SCIOERP against all damages finally awarded against SCIOERP, SCIOERP LTD, its Affiliates and subcontractors (or the amount of any settlement Customer enters into) with respect to these claims.

8.3. Third Party Claim Procedure

All third party claims under Section 8 shall be conducted as follows:

1. The party against whom a third party claim is brought (the "Named Party") will timely notify the other party (the "Defending Party") in writing of any claim. The Named Party shall reasonably cooperate in the defense and may appear (at its own expense) through counsel reasonably acceptable to the Defending Party subject to Section 8.3b).
2. Any settlement of a claim will not include a financial or specific performance obligation on, or admission of liability by the Named Party.

8.4. Exclusive Remedy

The provisions of Section 8 state the sole, exclusive, and entire liability of the parties, their Affiliates, Business Partners and subcontractors to the other party, and is the other party’s sole remedy, with respect to covered third party claims and to the infringement or misappropriation of third party intellectual property rights.

9. LIMITATION OF LIABILITY

9.1. No Cap on Liability

Neither party’s liability is capped for damages resulting from:

1. the parties’ obligations under Section 8.1.1 and 8.2 (excluding SCIOERP’s obligation under Section 8.1.1 where the third party claim(s) relates to Cloud Services not developed by SCIOERP);
2. death or bodily injury arising from either party’s gross negligence or willful misconduct; and / or
3. Customer’s unauthorized use of any Cloud Service and / or any failure by Customer to pay any fees due under the Agreement.

9.2. Liability Cap

Except as set forth in Section 9.1, the maximum aggregate liability of either party (or its respective Affiliates or SCIOERP’s subcontractors) to the other or to any other person or entity for all events (or series of connected events) arising in any 12 month period will not exceed the annual subscription fees paid for the applicable Cloud Service associated with the damages for that 12 month period. Any “12 month period” commences on the Subscription Term start date or any of its yearly anniversaries.

9.3. Exclusion of Damages

In no case will:

1. either party (or its respective Affiliates or SCIOERP’s subcontractors) be liable to the other party for any special, incidental, consequential, or indirect damages, loss of goodwill or business profits, work stoppage or for exemplary or punitive damages; and
2. SCIOERP be liable for any damages caused by any Cloud Service provided for no fee.

10. INTELLECTUAL PROPERTY RIGHTS

10.1. SCIOERP Ownership

10.1.1. Except for any rights expressly granted to Customer under the Agreement, SCIOERP, SCIOERP LTD, their Affiliates or licensors own all Intellectual Property Rights in and derivative works of:

1. the Cloud Service;
2. SCIOERP Materials;
3. Documentation; and
4. any Professional Services, design contributions, related knowledge or processes, whether or not developed for Customer.

10.2. Acceptable Use Policy

10.2.1. With respect to the Cloud Service, Customer will not:

1. copy, translate, disassemble, decompile, make derivative works, or reverse engineer the Cloud Service or SCIOERP Materials (or attempt any of the foregoing);
2. enter, store, or transfer any content or data on or via the Cloud Service that is unlawful or infringes any Intellectual Property Rights;
3. circumvent or endanger the operation or security of the Cloud Service; or
4. remove SCIOERP's copyright and authorship notices.

11. CONFIDENTIALITY

11.1. Use of Confidential Information

11.1.1. The receiving party shall:

1. maintain all Confidential Information of the disclosing party in strict confidence, taking steps to protect the disclosing party's Confidential Information substantially similar to those steps that the receiving party takes to protect its own Confidential Information, which shall not be less than a reasonable standard of care;
2. not disclose or reveal any Confidential Information of the disclosing party to any person other than its Representatives whose access is necessary to enable it to exercise its rights or perform its obligations under the Agreement and who are under obligations of confidentiality substantially similar to those in Section 11;
3. not use or reproduce any Confidential Information of the disclosing party for any purpose outside the scope of the Agreement; and
4. retain any and all confidential, internal, or proprietary notices or legends which appear on the original and on any reproductions.

11.1.2. Customer shall not disclose any information about the Agreement, its terms and conditions, the pricing or any other related facts to any third party.

11.1.3. Confidential Information of either party disclosed prior to execution of the Agreement will be subject to Section 11.

11.2. Compelled Disclosure

The receiving party may disclose the disclosing party's Confidential Information to the extent required by law, regulation, court order or regulatory agency; provided, that the receiving party required to make such a disclosure uses reasonable efforts to give the disclosing party reasonable prior notice of such required disclosure (to the extent legally permitted) and provides reasonable assistance in contesting the required disclosure, at the request and cost of the disclosing party. The receiving party and its Representatives shall use commercially reasonable efforts to disclose only that portion of the Confidential Information which is legally requested to be disclosed and shall request that all Confidential Information that is so disclosed is accorded confidential treatment.

11.3. Exceptions

The restrictions on use or disclosure of Confidential Information will not apply to any Confidential Information that:

1. is independently developed by the receiving party without reference to the disclosing party’s Confidential Information;
2. has become generally known or available to the public through no act or omission by the receiving party;
3. at the time of disclosure, was known to the receiving party free of confidentiality restrictions;
4. is lawfully acquired free of restriction by the receiving party from a third party having the right to furnish such Confidential Information; or
5. the disclosing party agrees in writing is free of confidentiality restrictions.

11.4. Destruction and Return of Confidential Information

Upon the disclosing party's request, the receiving party shall promptly destroy or return the disclosing party's Confidential Information, including copies and reproductions of it. The obligation to destroy or return Confidential Information shall not apply:

1. if legal proceedings related to the Confidential Information prohibit its return or destruction, until the proceedings are settled or a final judgment is rendered;
2. to Confidential Information held in archive or back-up systems under general systems archiving or backup policies; or
3. to Confidential Information the receiving party is legally entitled or required to retain.

12. FEEDBACK

12.1. Customer may at its sole discretion and option provide SCIOERP with Feedback. In such instance, SCIOERP, SCIOERP LTD and its Affiliates may in their sole discretion retain and freely use, incorporate or otherwise exploit such Feedback without restriction, compensation or attribution to the source of the Feedback.

13. MISCELLANEOUS

13.1. Severability

If any provision of the Agreement is held to be wholly or in part invalid or unenforceable, the invalidity or unenforceability will not affect the other provisions of the Agreement. The invalid or unenforceable provision will be replaced by a valid and enforceable provision which approximates as closely as possible the intent of the invalid or unenforceable provision. This will also apply in cases of contractual gaps.

13.2. No Waiver

A waiver of any breach of the Agreement is not deemed a waiver of any other breach.

13.3. Counterparts

The Agreement may be signed in counterparts, each of which is an original and together constitute one Agreement. Electronic signatures via DocuSign or any other form as determined by SCIOERP are deemed original signatures.

13.4. Trade Compliance

13.4.1. SCIOERP and Customer shall comply with Export Laws in the performance of this Agreement. SCIOERP Confidential Information is subject to Export Laws. Customer, its Affiliates, and Authorized Users shall not directly or indirectly export, re-export, release, or transfer Confidential Information in violation of Export Laws. Customer is solely responsible for compliance with Export Laws related to Customer Data, including obtaining any required export authorizations for Customer Data. Customer shall not use the Cloud Service from Crimea/Sevastopol, Cuba, Iran, the People's Republic of Korea (North Korea), the so-called Luhansk Peoples Republic (LNR) and Donetsk Peoples Republic (DNR) or Syria.

13.4.2. Upon SCIOERP’s request, Customer shall provide information and documents to support obtaining an export authorization. Upon written notice to Customer SCIOERP may immediately terminate Customer’s subscription to the affected Cloud Service if:

1. the competent authority does not grant such export authorization within 18 months; or
2. Export Laws prohibit SCIOERP from providing the Cloud Service or Professional Services to Customer.

13.5. Notices

All notices will be in writing and given when delivered to the address set forth in an Order Schedule. Notices from SCIOERP to Customer may be in the form of an electronic notice to Customer’s authorized representative or administrator. SCIOERP may provide notice of modifications to the Cloud Service under Section 3.4.2 via Documentation, release notes or publication. System notifications and information from SCIOERP relating to the operation, hosting or support of the Cloud Service can also be provided within the Cloud Service, or made available via the SCIOERP Support Portal.

13.6. Assignment

Without SCIOERP’s prior written consent, Customer may not assign, delegate or otherwise transfer the Agreement (or any of its rights or obligations) to any party. SCIOERP may assign the Agreement to SCIOERP LTD or any of its Affiliates.

13.7. Subcontracting

SCIOERP may subcontract parts of the Cloud Service to third parties. SCIOERP is responsible for breaches of the Agreement caused by its subcontractors.

13.8. Relationship of the Parties

The parties are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties is created by the Agreement.

13.9. Force Majeure

Any delay in performance (other than for the payment of amounts due) caused by conditions beyond the reasonable control of the performing party is not a breach of the Agreement. The time for performance will be extended for a period equal to the duration of the conditions preventing performance.

13.10. Governing Law

The Agreement and any claims (including any non-contractual claims) arising out of or in connection with this Agreement and its subject matter will be governed by and construed under the laws of South Africa. The United Nations Convention on Contracts for the International Sale of Goods and any conflicts of law principles and the Uniform Computer Information Transactions Act (where enacted) will not apply to the Agreement.

13.11. Jurisdiction and Mandatory Venue

The parties submit to the exclusive jurisdiction of the courts located in South Africa. The parties waive any objections to the venue or jurisdictions identified in this provision. The mandatory, sole and exclusive venue, place or forum for any disputes arising from the Agreement (including any dispute regarding the existence, validity or termination of the Agreement) shall be South Africa.

13.12. Waiver of Right to Jury Trial

Each party waives any right it may have to a jury trial for any claim or cause of action arising out of or in relation to the Agreement.

13.13. Statute of Limitation

Customer must initiate a cause of action for any claim(s) relating to the Agreement and its subject matter within 1 year from the date when the Customer knew, or should have known after reasonable investigation, of the facts giving rise to the claim(s).

13.14. Entire Agreement

The Agreement constitutes the complete and exclusive statement of the agreement between SCIOERP and Customer in connection with the parties’ business relationship related to the subject matter of the Agreement. All previous representations, discussions, and writings (including any confidentiality agreements) are merged in and superseded by the Agreement and the parties disclaim any reliance on them. The Agreement may not be modified except as agreed by both parties by an executed written amendment, or as otherwise permitted under the Agreement. Terms and conditions of any Customer-issued purchase order shall have no force and effect, even if SCIOERP accepts or does not otherwise reject the purchase order.

14. Hierarchy

In the event of any inconsistencies between the provisions of the following documents, the order of precedence set forth below shall apply:

1. Order Schedule (including the Scope Document);
2. Service Description (if any);
3. Data Processing Agreement (DPA);
4. General Terms and Conditions (GT&Cs).

The provisions of the higher-priority document shall take precedence and govern in the event of any inconsistencies.